Lezzar v. Heathman

• Decision Date: 11 October 2012
• Docket Number: CIVIL ACTION NO. 4:11-CV-4168
• Parties: KIRAM EDDINE LEZZAR, Plaintiff, v. SANDRA HEATHMAN, Houston District Director, United States Citizenship and Immigration Services; ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services; JANET NAPOLITANO, Secretary of the Department of Homeland Security; ERIC H. j HOLDER, JR., Attorney General of the United States, UNITED STATES CITIZENSHIP and IMMIGRATION SERVICES; and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.
• Court: U.S. District Court — Southern District of Texas

KIRAM EDDINE LEZZAR, Plaintiff, v. SANDRA HEATHMAN,¹ Houston District Director, United States Citizenship and Immigration

Services; ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration

Services; JANET NAPOLITANO, Secretary of the Department of Homeland Security;

ERIC H. j HOLDER, JR., Attorney General of the United States,

UNITED STATES CITIZENSHIP and IMMIGRATION SERVICES;

and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.

CIVIL ACTION NO. 4:11-CV-4168

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Filed: October 11, 2012

OPINION AND ORDER OF PARTIAL DISMISSAL

Pending before the Court in the above referenced petition for de novo review of the denial of Plaintiff Kiram Eddine Lezzar's N-400 Application for Naturalization pursuant to Section 301(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1421(c), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500 et seq., inter alia, are two motions: (1)Defendants' Partial Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim for which relief may be granted (instrument #14); and (2) Plaintiff's motion for leave to amend pleadings pursuant to Fed. R. Civ. P. 15(a)(#17).

Plaintiff is a native and citizen of Algeria, a geologist, and a lawful permanent resident of the United States since August 13, 2003. Original Complaint, #1 at ¶11. On April 30, 2009 he filed a Form N-400 Application for Naturalization with the United States Citizenship and Immigration Services ("USCIS"), which was denied on January 11, 2011 for failure to establish that he was "a person of good moral character and for failing to establish attachment to the Constitution of the United States."² #1 at ¶¶12, 14-15; Decision, #17, Ex. A. Tab1.³ Specifically the USCIS determined that Plaintiff was ineligible for naturalization because (1) in his Application for Adjustment of Status, Form I-485, on February 6, 2002 he failed to list the Islamic Society of New York, N.Y. among the organizations of which he was a member; (2) despite the above omission, in response to the question "have you ever given false or misleading information to any U.S. Government official while applying for any immigration benefit . . . ," he marked "no"; and (3) he participated (a) in a protest march in Syracuse, New York around 2003-04 and (b) in a demonstration in Houston around 2009-10 to support Zoubir Bouchiki, a former Imam who was subsequently arrested for immigration violations and removed from the United States, and community member Dr. Rafel Dhafir, who was arrested and convicted on 59 counts of violation federal regulations and is currently serving a 22-year sentence. Decision, #17-1. On February 8, 2011 Plaintiff filed a Form N-336 Request for Hearing on a Decision in Naturalization Proceeding, which on August 5, 2011 was also denied, and the USCIS's earlier determination, affirmed. #1 at ¶¶16-17.

Plaintiff then filed this suit, which, in addition to challenging the denial of his Application for Naturalization by the USCIS under 8 U.S.C. § 1421(c), claimed violations of the APA,⁴ the Due Process Clause of the Fifth Amendment in the denial of a meaningful opportunity to be heard, the Equal Protection Clause of the Fourteenth Amendment in Defendants' failure to explain why they had naturalized and continued to naturalize other similarly situated aliens,⁵ violations of 42 U.S.C. §§ 1983, 1985(3),⁶ and 1986; he also seeks relief under the MandamusAct, 28 U.S.C. § 1361.

Standards of Review

"When a motion to dismiss for lack of jurisdiction 'is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Crenshaw-Logal v. City of Abilene, Texas, 2011 WL 3363872, *1 (5th Cir. 2011), quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 762 (5th Cir. Mar. 15, 2011); Fed. R. Civ. P. 12(h)(3). If a complaint could be dismissed for both lack of jurisdiction and for failure to state a claim, " the court should dismiss only on the jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state a claim under [Rule] 12(b)(6)." Crenshaw-Logal, 2011 WL 3363872, *1, quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). The reasons behind this practice are to preclude courts from issuing advisory opinions and barring courts without jurisdiction "'from prematurely dismissing a case with prejudice.'". Id., citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998), and Ramming, 281 F.3d at 161.

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The party asserting that subject matter exists, here the plaintiff, mustbear the burden of proof for a 12(b)(1) motion. Ramming, 281 F.3d at 161. In reviewing a motion under 12(b)(1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995).

If it is a factual attack, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted bythe parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson, 2008 WL 4692392 at *10, citing Garcia, 104 F.3d at 1261. "Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist." Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981). In resolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit,⁷ has significant authority "'to weigh theevidence and satisfy itself as to the existence of its power to hear the case.'" Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986).

Here Defendants' subject-matter-jurisdiction challenge in its partial motion to dismiss is a facial attack.

Relating to Defendants' challenge to the adequacy of Plaintiff's pleading, Federal Rule of Civil Procedure 8(a)(2) provides, "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." When a district courtreviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . ." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). "Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)["a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"], and instead required that a complaint allege enough facts to state a claimthat is plausible on its face." St. Germain v. Howard,556 F.3d 261,...